Wolfson v. Palmieri

• Decision Date: 29 May 1968
• Docket Number: Dockets 32372,32373.
• Citation: 396 F.2d 121
• Parties: Louis E. WOLFSON and Elkin B. Gerbert, Petitioners, v. Honorable Edmund L. PALMIERI, United States District Judge for the Southern District of New York, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

396 F.2d 121 (1968)

Louis E. WOLFSON and Elkin B. Gerbert, Petitioners, v. Honorable Edmund L. PALMIERI, United States District Judge for the Southern District of New York, Respondent.

Dockets 32372, 32373.

United States Court of Appeals Second Circuit.

Petition for Mandamus Argued May 27, 1968.

Decided May 29, 1968.

William O. Bittman, Austin S. Mittler, Hogan & Hartson, Washington, D. C., Edgar H. Brenner, Arnold & Porter, Washington, D. C., Chester Bedell, Bedell, Bedell, Dittmar & Smith, Jacksonville, Fla., for defendants-appellants, Wolfson and Gerbert.

Paul R. Grand, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, New York City), for appellee, United States.

Before MOORE, FRIENDLY and KAUFMAN, Circuit Judges.

PER CURIAM:

Petitioners Louis E. Wolfson and Elkin B. Gerbert petition this Court to issue a writ of mandamus and/or prohibition or an order in the nature of such writs directing that the Hon. Edmund L. Palmieri recuse and disqualify himself from further participation in the case of Unites States v. Louis E. Wolfson, Elkin Gerbert, Joseph Kosow, Alexander Rittmaster, Marshall Staub, defendants (66 Cr. 832), now about to be tried in the District Court for the Southern District of New York, pursuant to Sections 144 and 455, Title 28, United States Code and the decision of this Court in United States v. Simon, 2 Cir., 393 F.2d 90, decided April 17, 1968.

A brief resume of the procedural facts is required as a background for decision.

The indictment in the present case (the Merritt-Chapman & Scott case) was returned on October 18, 1966, in which petitioners Wolfson and Gerbert, along with three other persons were charged with fraud in the purchase of stock of Merritt-Chapman & Scott and committing perjury in filing false reports with the Securities and Exchange Commission. Prior thereto, on September 19, 1966, the same grand jury had returned indictment No. 66 Cr. 720, United States v. Wolfson and Gerbert (the Continental Enterprises case), in which Wolfson and Gerbert were the only defendants and were charged with violating and conspiring to violate the registration provisions of the Securities Act of 1933 with respect to stock of Continental Enterprises.

On August 14, 1967, the Continental Enterprises case was assigned by the Judge of the criminal assignment part of the district court to Judge Palmieri for trial. On August 18, 1967, the Merritt-Chapman & Scott case was also assigned by the same assignment Judge to Judge Palmieri. These assignments were made pursant to a policy wherein various district judges had made known to the Chief Judge at what periods they would be available for lengthy criminal trials.

On October 17, 1967, the defendants moved to challenge the assignment of these cases to the same judge which motion was denied on December 4, 1967, by Judge Palmieri.

The trial of the Continental Enterprises case commenced on September 6, 1967, and ended September 29, 1967, with the conviction of the two defendants, Wolfson and Gerbert. Sentence was imposed on November 28, 1967. An appeal from the judgment of conviction was argued on April 4, 1968, and is presently sub judice.

On February 13, 1968, in the Merritt-Chapman case by pre-trial motions, the defendants therein moved (1) for suppression of evidence; (2) Kosow and Staub only — for a severance and separate trials as to them; (3) for change of venue; (4) Wolfson and Gerbert only — for a continuance until after the decision of the appeal in the Continental Enterprises case and because of Wolfson's health; (5) for disclosure of statement; (6) for compliance with a bill of particulars order; (7) for the production of exculpatory evidence; and (8) to challenge the composition of the Grand Jury. The motions were denied except that a continuance was granted to June 12, 1968, (5) and (6) were granted in part; and (8) was held in abeyance awaiting a decision in a similar motion before Judge Tyler. The opinion is dated March 20, 1968. The motion for change of venue was based principally upon the allegedly extensive and prejudicial publicity which attended the petitioners' trial and sentencing on November 28, 1967, in the Continental Enterprises case. No motion of this group was addressed to any disqualification of Judge Palmieri to preside at the trial.

On April 17, 1968, this Court decided United States v. Simon, 2 Cir., 393 F.2d 90, wherein it dealt with the question of the desirability of the same judge presiding at a second trial of the same criminal case where such a trial becomes necessary. It concluded that "it is the wiser practice, whenever possible, that a lengthy criminal case be retried before a different judge unless all parties request that the same judge retry the case," and expressed the belief that the Judge "will act pursuant to our views regarding the preferred practice in these matters, * * *."

The next day, April 18, 1968, the defendants sought by motion to have Judge Palmieri disqualify himself on the basis of Simon. This motion was denied on April 24th on the ground that the situations were not parallel, and a petition for mandamus was dismissed by this Court on May 2, 1968, for lack of jurisdiction because no affidavit of bias or prejudice had been submitted. 394 F.2d 7. Petitioners promptly filed such a motion before Judge Palmieri, alleging both that the judge had a "personal bias and prejudice" against them, 28 U.S.C. § 144, and that he was disqualified under 28 U.S.C. § 455 because a former law clerk is an assistant prosecutor and petitioners intend to claim prosecutional misconduct in the issuance of subpoenas. They also reiterated their contention as to the supposed controlling effect of United States v. Simon.

In denying petitioners' motion for disqualification, Judge Palmieri held that (1) the affidavit of bias and prejudice was legally insufficient; (2) the accompanying certificate of good faith was defective in that it was not made by the "counsel of record"; and (3) the petitioners had exhibited a lack of diligence and improper use of Section 144. We find it unnecessary to consider the latter two holdings since we agree that the affidavit of bias and prejudice was not sufficient to require recusation. He also held that the claim under § 455 was not made out, a ruling not seriously challenged on oral argument, and so plainly right as to require no discussion.

The principles governing the disposition of affidavits for disqualification under what is now 28 U.S.C. § 144, were laid down in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L. Ed. 481 (1921), and recently applied by this court in Rosen v. Sugarman, 357 F.2d 794, 797-798 (2d Cir. 1966):

"* * * Although the facts stated in the affidavit are to be taken as true, the judge may inquire into their legal sufficiency. Indeed he must do so. There is `as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is,\' In re Union Leader Corp., 292 F.2d 381, 391 (1 Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L. Ed. 190 (1961); * * *. To be sufficient an affidavit must show `the objectionable inclination or disposition of the judge\'; it must give `fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.\' Berger v. United States, 255 U.S. at 33-35, 41 S.Ct. at 233."

Petitioners' allegations in their affidavit of bias and prejudice may fairly be broken down into three categories: (1) comments made at the Continental Enterprises trial; (2) rulings made at the Continental Enterprises trial; and (3) rulings made on pretrial motions, including the present motion for disqualification, in the Merritt-Chapman & Scott case.

Section 144¹ itself provides that the bias sufficient to disqualify must be "personal." It has been said that "`Personal' is in contrast with judicial; it characterizes an attitude of extra-judicial origin, derived non coram judice. * * * The statute never contemplated crippling our courts by disqualifying a judge, solely on the basis of a bias (or state of mind, * * *) against wrongdoers, civil or criminal, acquired from evidence presented in the course of judicial proceedings before him." Craven v. United States, 22 F.2d 605, 607-608 (1st Cir. 1927), cert. denied, 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739 (1927). The Supreme Court has stated that: "The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an...